August 6, 2021

Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(U))

https://www.beynensonlaw.com/case-law/cautious-care-med-p-c-v-21st-century-ins-co-2021-ny-slip-op50785u/

Court: Appellate Term, Second Department
Decided: August 6, 2021
Citation: 2021 NY Slip Op 50785(U)
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Defaults and vacatur

Cite as

Cautious Care Med., P.C. v 21st Century Ins. Co., 2021 NY Slip Op 50785(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer established a reasonable excuse for default through process-receipt procedures and records showing no record of the lawsuit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, vacating the default judgment under CPLR 5015 (a) (1) and extending the insurer's time to answer. The alleged recipient of process described procedures that would have created a record and documented receipt of process in other cases on the alleged service date. The trial court did not abuse its discretion in accepting that excuse. The provider challenged only the excuse, leaving the potentially meritorious defense uncontested; its remaining arguments concerned dismissal relief that had been denied and was not cross-appealed.

Reported in New York Official Reports at Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Cautious Care Medical, P.C., as Assignee of White, Frank, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of and Karina Barska counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 1, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered September 25, 2018 upon defendant’s failure to appear or answer the complaint, and to enlarge defendant’s time to serve and file an answer.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment entered September 25, 2018 upon defendant’s failure to appear or answer the complaint, and to enlarge defendant’s time to serve and file an answer.

To vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). The Civil Court found that defendant demonstrated both “a reasonable excuse and meritorious defense,” and, on appeal, plaintiff limits its argument to defendant’s excuse, specifically stating that it is unnecessary, under the circumstances presented, for this court to consider whether defendant demonstrated that it has a meritorious defense. “The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such determination” (Green Apple Mgt. Corp. v Aronis, 55 AD3d 669, 669 [2008]).

In support of its motion, defendant submitted an affidavit by the person alleged to have received service of process, who stated that she always follows defendant’s practices and [*2]procedures for receipt of process. These practices and procedures would have created a record of the instant lawsuit, and defendant demonstrated that it does not have any such record. Defendant’s affiant further explained, in detail, that the records she created on July 8, 2015, the date service herein was allegedly made, as part of defendant’s practices and procedures, demonstrate that she received process in 14 other cases on that date. Under these circumstances, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default.

Plaintiff’s remaining appellate contentions are relevant only to the branch of defendant’s motion seeking to dismiss the complaint, which was denied. Plaintiff is not aggrieved thereby and defendant has not cross-appealed from it.

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 6, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

Progressive Cas. Ins. Co. v Excel Prods., Inc. (2019 NY Slip Op 02569) FollowedThe provider's conclusory denial of receiving process failed to support vacatur of the insurers' default declaratory judgment.
Westchester Med. Ctr. v Allstate Ins. Co. (2011 NY Slip Op 00377) FollowedThe insurer established a reasonable clerical excuse for its brief default and a potentially meritorious defense.

Cited by

A label shows how the later decision treated this one.

A.H. Physical Therapy, P.C. v 21st Century Advantage Ins. Co. (2021 NY Slip Op 21355) FollowedThe insurer's detailed claims-clerk affidavit rebutted the process server's affidavit and required a traverse hearing on service.

Similar decisions

Diagnostic Medicine, P.C. v Auto One Ins. Co. (2019 NY Slip Op 51891(U))The judgment against the insurer was vacated for inadequate notice, but its unsupported excuse left the underlying default intact.
Art of Healing Medicine, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51433(U))The insurer's high claims volume did not reasonably excuse a six-month failure to review a summons and complaint.
Psychmetrics Med., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50690(U))The provider established a reasonable excuse for failing to proceed at trial because its witness was out of the country.
Medical Supply of NY Corp. v Berkshire Hathaway Homestate Ins. Co. (2025 NY Slip Op 50504(U))The insurer obtained default vacatur under CPLR 317 based on delayed actual notice and a potential workers' compensation defense.
Hand By Hand, PT, P.C. v New York Cent. Mut. Fire Ins. Co. (2022 NY Slip Op 50774(U))The insurer failed to establish a reasonable excuse for default because it did not explain mailing both answers to counsel's prior address.